Former Court of Appeal judge Sir Rupert Jackson – whose ideas have so often formed the basis of government policy – has proposed a radical change in liability and damages for clinical negligence claims.

Speaking at a medico-legal conference in London today, Jackson argued the case for a new test for liability, which would ask whether the patient had suffered ‘reasonably avoidable injury’.

Jackson: clinical negligence claims should be heard in a tribunal rather than court

Jackson accepted his proposal was likely to increase the number of claims brought for clinical negligence, but said this would be offset by plans to reduce legal costs with a tariff-based system of damages.

While the government has begun consulting on Jackson’s previous recommendations on fixed costs for lower-value claims, it remains to be seen whether a re-drawing of clinical negligence law would also find favour.

Jackson described a ‘looming problem’ where the population gets older and demands of the health service increase, with doctors relying on systematic issues and saying ‘I was doing my best in an impossible situation’.

‘The time may come, for example in an unusually long and cold winter, when an NHS trust can demonstrate it simply did not have the funds to deply the requisite staff,’ said the retired judge, who continues to work as an arbitrator and adjudicator. ‘The answer is to simplify and objectify the test for liability… if the injury was reasonably avoidable, then the fact that the doctor had been on a twelve-hour shift and had numerous other patients to treat is neither here nor there. The relevant health trust or private hospital is liable.’

Jackson said the new liability test would offer patient protection and ensure the doctor or nurse involved was not named in proceedings.

He accepted there could be more claims, but said compensation could be on fixed levels, enabling an equal distribution of the available funds amongst all deserving claimants, in place of the present system in which a small proportion of deserving claimants recover higher damages.

The costs of litigating, he suggested, could be reduced if clinical disputes were heard through a tribunal process rather than the court. A new clinical chamber of the first tier tribunal and upper tribunal could handle clinical negligence claims, as well as disciplinary matters, and would feature judges sitting alongside colleagues with medical experience.